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tv   Key Capitol Hill Hearings  CSPAN  September 23, 2014 6:00pm-8:01pm EDT

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i want to take this opportunity to apply that analytical framework to the issue of health care. as we think about the question of how is the affordable care act working. then i would like to share with you a little bit about how i am thinking of the steps as we go forward. i have come to believe strongly in the importance of measurable impact. when it comes to the affordable care act, i think there are three basic measures. access, affordability, and quality. our more people getting covered? access and affordability. are middle-class families shielded from suffocating melba -- medical those? affordability -- medical bills? affordability. when you consider the law through affordability, access and quality, the affordable care
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act is working. and families, businesses and taxpayers are better off as a result. four years after president obama signed a law, middle-class families have more security and many who already had insurance have better coverage. if -- fewer americans are insured and come at the same time, we are spending our health care dollars more wisely and we are starting to receive higher-quality care. as we walk through the evidence, it might be helpful to add a little historical context. as a country, we have been wrestling with these questions of how to cover the insured for as long as the brookings
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institution has been here. as a matter fact, even longer. in 1912, teddy roosevelt's progressive party platform called for universal health care along with priorities like women's suffrage and a national highway system. in the 19 20's, women got the right to vote during in the 1950's, president eisenhower delivered this nation a highway system. 80 years ago, president franklin delano roosevelt succeeded increasing social security but was unable to make roberts on the issue of a national healthcare system. 625 is ago, president truman asked congress for a fair deal, a deal that included things like equal rights for all, an increase in the minimum wage, and universal health air. congress passed the minimum wage. 50 years, president johnson signed medicare and medicaid
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into law. but a few years later, another president told the congress, "copperheads of health insurance is an idea whose time has come in america. there has long been a need to ensure every american access to health care." that president was richard nixon. our country has paid a hefty price for inaction on health care even though president ford come up harder, bush, and clinton made this issue a priority. cost spiraled out of control and health care became unaffordable for millions of families and businesses alike. taxpayers felt the effect as well. of those who weren't priced out of the health-care market, many were locked out because of pre-existing conditions. and many who were fortunate enough to have insurance did not receive a very high quality of care. by the time president obama took the oath of office, our system had broken down to such a degree that we were spending far more as an economy on health care in both gross and per capita terms that all the other developed countries. in 2009, we were spending $2 trillion a year on health care. it was almost 50% more per
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person than the next most costly nation. these rising costs took their toll on family budgets. in 2007, a harvard study led by a certain professor with a very bright future, elizabeth warren, found that 62% of personal bankruptcies were due to medical problems. what were we getting for the higher health care costs that we shouldered? in 2010, the commonwealth fund benchmark our health care system against six advanced industrialized nations. in that the quality, access, efficiency, equity and healthy lives. we were dead last. while we were not scoring well in these benchmarks, we are doing a lot better on some measures of quality. by the time the affordable care act was passed, tens of millions of americans were injured.
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-- were insured. everyone felt the impact. too many americans relied on the emergency room for the most basic medical care. uninsured children statistically were more likely to have fewer immunizations and go without prescriptions. uninsured adults were more likely to have chronic health conditions, many of which went undiagnosed. the system was not working either for millions of americans who had insurance. 78% of people who went bankrupt due to medical bills actually had health insurance. just because you happen to have an insurance card, your carrot was not necessarily affordable. if you got charged several thousand dollars for an ambulance ride that was not covered. having an insurance card did not guarantee that you had access to the services you needed. having an insurance card did not
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mean your doctors were effectively coordinating so that you wouldn't end up taking tests twice or getting procedures that you may not even need. thanks to the affordable care act, things are changing for the better. let's consider for a moment the evidence on the uninsured where we are making historic progress. the affordable care act addresses affordable, quality, and access. a look at barriers to covers like pre-existing conditions as well as annual and lifetime caps. it allows young adults to stay on their parents' policy until they were age 26. it created the health insurance marketplace. insurance companies now can provide affordable coverage to consumers through that marketplace. during the last open enrollment,
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consumers chose from an average of nearly he plans. i have some news for you when it comes to choice and competition. today, we are able to announce that in 2015, there has been a 25% increase in the total number of issuers selling insurance in the marketplace. there is already real evidence these plans are affordable. just last week, the commonwealth fund released a study showing that 70% of americans with marketplace insurance plans feel they can now afford their care. and a majority say their premiums are affordable. it is no surprise therefore that, when folks evaluate the success of the law, the marketplace receives much of that attention. back in march, news reports suggested it would take something close to a miracle to reach 6 million people. last week, we announced the that
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7.3 million people signed up for marketplace plans, paid their premiums, and have access to affordable care. 7.3 million people, to borrow a phrase from the vice president, is a big deal. but i am here to tell you i don't think that is the number we should focus on very yesterday, we released another number, a significant number, and that is that 8 million people enrolled in medicaid or chips since the enrollment date, an increase of nearly 14% in terms of the monthly increases before that time. that is a significant number. but again, i don't think that is the most important number we should focus on. the number that is even more important is that, in just one year, we reduce the number of uninsured, adults that are uninsured, by 26%. to translate that, since 2013, 10.3 million adults are no longer uninsured. i firmly believe this is the key measure.
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we should look at it because it represents historic progress on something that has eluded our country for over a century. there isn't a business in america that wouldn't be ecstatic with that kind of growth. ultimately, every number tells a story. i want to share with you the story of robert mailer junior, a floridian who was uninsured. roberts coverage, he signed up for the marketplace and it took in effect on january 1. on january 2, robert went to see a growth he had on his tonsils and i'm afraid the diagnosis was bad. it was late stage cancer. after prayer, perseverance, ration and chemotherapy, robert is now cancer free. without health insurance, those treatments that saved his life would be $200,000. under the affordable care act for robert, what we saw is he paid a $2000 deductible, $1500
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in co-pays, and what was roberts monthly premium? $118. i want to read some words to you from robert directly. "i was not in favor of obamacare," he said. "last year, i was not going to pay for health insurance and i was quick to take the penalty. i am one of the luckiest people in the world. i'm going to live and work and be productive. so i would submit that roberts story is not a story of the left or the right. it is the story of affordability, access and quality. when it comes to americans who already had insurance, i will be straightforward with you.
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those of us who support the affordable care act haven't done a good job at making the case that this was something that helped those people. if you think about a mom or a dad sitting at the kitchen table working out a family budget, it is a big deal that they are saving money, still getting better coverage, and have financial security. many middle-class americans have more money in their budgets because their insurance company is now required to spend at least 80% of their premium on their health care. families have saved an average of $80 that they can live on their electric bill or back in their grocery budget. meanwhile, millions of seniors are saving billions of dollars on their prescriptions as we phased out the donut hole. more than a .2 million seniors have saved -- 8.2 million seniors have saved $5 billion. middle-class families are benefiting from the real security that comes from knowing your health care coverage will be there when you need it. families no longer have to worry about losing their homes or
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having their hard-earned savings wiped away by an accident or an unexpected diagnosis. there is security in knowing that, if you lose your job, you can purchase market place coverage, even if you have a pre-existing condition and you won't lose your insurance just because you get sick or get caught off or if you need chemotherapy or some life-saving operation. a healthier and more financially secure middle-class is good for business who benefit from a healthy workforce and consumers with more disposable income. the bipartisan policy center reported last week that businesses lose $576 billion each year because of an unhealthy population. as the new law makes our population healthier, we should be able to ring this number down. some of the biggest and most positive impacts that businesses
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and taxpayers feel from the law are in the area costs. since president obama signed the affordable care act, there is evidence that we have been to the cost are when it comes to health care. we have held down health care price inflation to the lowest level in 50 years. premiums for employer-based coverage have been driven down as well. earlier this month, kaiser reported that this year's cost growth is the lowest on record. it's been projected that, had premiums ground at the rate we saw over the previous decade, instead of the slower rate of the past four years, employer coverage would be $1800 more today. if you are an employer, this means it is easier for you to hire workers. if you are an employee, it means you can be keeping more that in your paycheck tomorrow. if you are a taxpayer, it means a healthier economy. improvements to our health delivery system are also having an impact on costs to taxpayers as we spend dollars more wisely. we save taxpayers $160 billion in spending medical dollars more wisely.
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in a further example, the accountable care organization models we are testing through medicare are saving $370 million and counting. at the same time, they are delivering care that is more coordinated to beneficiaries and rewarding providers that do that. taken together, i believe the evidence points to a clear conclusion. the affordable care act is working. my job as secretary is to lead our efforts, to keep it working and to help it work better. like anyone in business, we want to learn from the things we got
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right and the things we got wrong. we are taking that approach and we have a four-part strategy moving forward. first, improving access and affordability through the marketplace. in order to make sure that americans continue to get access and affordable choices, we have to get healthcare.gov right. to me, the formula for this is technology, management and prioritization. we are checking off the outstanding items from last year's to do list, cleaning up the backend personality and adding functionality for renewing and enrolling in coverage. we are prioritizing the most important issues and the areas to improve consistent with our deadlines. we are focusing on giving ourselves the appropriate amount of time for testing and we are very focused on security. anyone who can ever manage a wrought -- a large scale arctic knows that these are challenging and require tough choices. we are prepared to make those choices so that we can deliver the best consumer experience. second, improving quality for patients and spending every
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dollar wisely. we are testing new models in medicare and medicaid and reaching out to the business community to find solutions that we can all benefit from. changing incentives from volume-based to more impact-based systems come investing in tools that can expand our capacity for change in the health care delivery system, improving the flow of information so doctors can spend more time with patients and less time doing paperwork, so they can coordinate more effectively with the -- with one another. third, expanding access by expanding medicaid. one of the first meetings i did with -- was a bipartisan meeting with governors and i said to all the governors we want to work with you. we want to work with you to be flexible, to expand access to medicaid. in the time that i have been there, we have added pennsylvania, a state with a republican governor, and we are hopeful that we can work
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together to do more in that space. fourth, helping consumers understand how to use their new coverage, including the role of prevention and wellness. many of the folks who are newly covered have not held health insurance in years and some never before. we want to make sure that folks know how to use their coverage and we are partnering with organizations across the country to help them do so. i would like to close with one final thought. as we work through these issues, i think we need a bit of a course correction when it comes to how we talk about these issues. it starts with collectively turning the volume down. surely, we can all agree that the back and forth hasn't really helped those that we are trying to serve in terms of delivering for the hard-working families that we all try to serve. i prefer a brookings-type approach, quality, independence,
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and impact. a small business owner from texas wrote a blog for the hhs blog. what you talked about is what it was like to be uninsured. she talked about what it was like to be insured but not have a member of your family be covered because your son had a pre-existing condition. she wrote about, for her family, the affordable care act is working. i want to read to you a few of her words. "recently, i was able to enroll my family, my entire family. not only is my son finally covered, our premium is only half of what we were paying before. i was shocked to learn my prescriptions, which used to cost $280 a month, now cost five dollars. my dog -- my family now has the financial security and jim and
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his peace of mind that comes with coverage. i don't have to work for someone else just for the health benefits anymore. i launched my small business and can focus on expanding it." families across the country are counting on us. they are our boss and they are looking for this to work. let's work forward together. thank you. [applause] i am happy to take some questions. yes. >> thank you. i am from the american cancer society. people touched by cancer know have available insurance is. the challenge for all of us has been making sure that people who have not been touched by the disease or may be at risk for it, how the law can help them. as well as those who have coverage through work, how the level stirs that. what will hhs and cms be doing to educate those people about the importance of the law.
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>> in point four, when i talked about the coverage and the covers, i think the point you raise is one not just for the newly insured but across all. i think many people don't realize the extension of benefits for prevention and wellness. i think that is probably what you are referring to specifically. one of the things we will do as we do our education for the uninsured is do that more broadly. the other thing is, in our conversations with the employers, that is a place where we are having a lot of conversations. i think many employers are ready to talk about issues of wellness and prevention. what we want to do is our own messaging, but we know in this case things will move more through our partners, the stakeholders on the ground,
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people who are delivering to move that message out, and it is an important one. the point i made earlier, i do not think we have done a good job to help understand what the affordable care act did. yes? >> thank you for your remarks. a lot of our hospitals were deeply involved in giving people -- getting people enrolled. for hospitals that were not yet engaged in that, that have hesitated because they are in states where the aca is not as popular, do you have guidance for those in how they can work in their community and getting people signed up? >> thank you for the support and help. with regard to the states where the aca is not as popular, one of the things is making sure states reach out to us. there are regional offices across the country for hhs, and with the hospitals, whether coming to our business organizations in washington or the regions, that might be more familiar with the challenges you
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are articulating, we want to work with those so we can enable them to do what they can do. now that people can see last year this time we did not have something we could point to. we did not have those stories, and we are hopeful that will be an element that can create a better environment, that where the environment is still out, we will work in ways that will work for the context that these hospitals are in. we are working with hospitals, insurers, stakeholders. this is an all hands on effort. yes. >> one of the things as we think the number of latinos who are signing up for the law could be improved, and i am wondering your thoughts on how we can make a more concerted effort to get to that community and make sure their community is covered.
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>> it is an important place, and we believe we can make progress, even more progress this year. one of the things we need to do is listen, listen to the feedback we received last year about a number of challenges. some of those challenges were technological, and some came and other forms, and we are trying to work through and make sure, whether through our navigators, to how we share information through language issues, that there are a whole suite of things we're working on to make it easier to engage in the system and, second, to make sure we are sharing the information so people can understand what it means in terms of the benefit that it will mean. and then work with stakeholders that are closest to these organizations to help make sure, whether it is how we phrase something, explain something. often those kinds of things are
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making a difference. we have heard from probably some of you all here on the issues of our challenges. leaves keep letting us know. the ones we can fix, we will work to do that and do that as quickly as we can. in the back. >> thank you. i am with the national center for transgender equality. and with all the great things that have been done for transgenders, we do not have rules for the active civil rights provisions, and most people have not heard of those provisions, including providers i have talked to. we have delivered hundreds of those stories of discrimination to the department, and i would
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like to know, are we going to see section 1557 implement rules this year? >> that is something we are most focused on, making sure as we are getting the system up and running that if there are issues of discrimination that we are working through those. thank you for doing that. with regard to that question for the specific timing of the rule, not something that i am at this point ready to commit to a specific timetable on where we are on that. consider the issue extremely important. you know the administration's commitment on a number of fronts to the issues around making sure that there is access and that the access is not discriminatory, that cuts across a wide range of issue. we want to work to make sure we are enforcing the law and understand the importance of the issue of that specific provision. thank you. thank you very much. [applause] >> on behalf of brookings, i want to thank secretary burwell and thank all of you for coming and listening out there. and good luck. we need this thing to work at hhs, and we are counting on you to make it work. thank you.
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>> c-span campaign 2014 debate coverage continues thursday night at 9:00. the brassica's second -- nebraska's second congressional debate, and the iowa u.s. senate debate.
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c-span campaign 2014, more than 100 debates in the control of congress. >> meeting with democratic in aenger tom wolf political report that says it leans democrat. here is part of the debate. >> do you think it is a crisis or is it not? if you do, why? if you don't, why not? >> it's a semantic thing. we have a problem. if we don't do something about it, it will become a crisis. we need to do with the governor says we need to do. governors past and present.
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just like a credit card bill. we have not been paying off our debt. we have got to stop doing that. >> one minute rebuttal to that? >> we are actually talking the same thing. we just disagree on how to do it. i am looking at budgets growing
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and the cost of the budget growing because of health care, have in, contracts we the cost of business that continues to grow. i have yet to see any country that has grown its economy by taxes. as tos i am inquisitive where he wants to spend the money, how much he wants to spend, and how is he going to get the revenue? i heard him say 9.9% is too high. we agree. we can be attracting a lot more business coming to pennsylvania. the like we eliminated inheritance tax on a family farm and family business. that is a start. but you have to control your spending first. >> part of a debate from last night between the candidates to
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be the next governor of pennsylvania. you can see the entire event any time at c-span.org. the supreme court term begins monday, october 6. today, constitutional attorneys and scholars previewed cases coming up in the new term including racial gerrymandering of congressional districts. the federalist society, this is an hour and a half. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] afternoon, and welcome. it is the season of the supreme court preview. this is the federalist society version of it and it's a very good one. this is also the season where you have two kinds of cases before the supreme court. they have granted perhaps 40 cases, some of them quite interesting.
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you'll hear about them today, mostly. also on the horizon are some real block esters that can really transform american life. theuding seven petitions justices will consider at their first conference of the new term of september 29 concerning the question of if there is a constitutional right to same-sex marriage. that, afar behind challenge to another aspect of the affordable care act. perhaps also on the horizon, conceivably this term, affirmative action and abortion. you have two things going on at once as is so often the case. we have a very distinguished panel today. i have never been to a panel that has not been introduced as a very distinguished panel but this one has that mark. inwarren kerr.wore he is quite possibly the leading
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expert on the fourth amendment. it's a pleasure to have you here. he was a clerk to justice kennedy. firmtner at the wiley rein , and the clerk to justice thomas. virginia sykes who has recently gone back to her practice in after service as assistant attorney general in the office of legal counsel at doj. she was a clerk to justice brennan. adam mike, counselor aboard and green associates and well known to a lot of us as a frequent contributor on legal matters to the weekly standard, the wall street journal, and other publications. chief counsel and policy director of the judicial crisis network, and also a frequent voice in the media. she clerked for justice thomas. i should introduce myself.
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i cover the supreme court for the new york times. what we are going to do is set up maybe a dozen different cases , mostly granted, a couple on the horizon. moving from panelists to panelist with maybe a little bit of exchange between us if someone has a insight or dissenting view. and every discussion among ourselves and we will turn to your questions. >> inc. you, adam. think you to the federalist society for the invitation here. i will run through three cases in five minutes, so it will be really fast. just introducing three cases and we can come back to them later if you'd like. cases this term, yates versus the united states, raising the question which i know is on everybody's mind, our red grouper fish tangible objects under the toxicity law? this is a case involving a
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criminal statute that makes it a crime to knowingly destroyed, alter, or mutilate any record, document, or tangible object. the question is if a tangible object means a storage device for some sort of record or document or if it means anything that is an object that is tangible. case areact of the drawing a lot of attention. i think properly so. involving an individual who -- he was convicted of ordering his employees a throwback red grouper that were undersized, facing an investigation of civil violation of harvesting fish that were too small. the question is whether the fish are tangible objects. it's really a statutory construction case about the aqua law, and i should also add that i joined an amicus brief on the
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defense side arguing that the statute to be narrowly construed under the rule of validity. that is you versus the united states. another is the facebook threat case involving a question of how to construe the interstate threat statute, section 875 c involving transmitting a threat. it involves an individual that posted on his facebook status updates involving what can be against his threats wife. at one point he threatens to go to an amusement park or go to a school and perhaps commit a violent act at the school. argued he was simply joking around, he is an aspiring rap artist and during his status updates, he is talking about true threat through his prudence and all what he is doing is first amendment protected.
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a very meta-situation of what is the true threat. in the case is whether there is a subject requirement. if he thought he was doing was not a serious threat, you interpret what is a threat based on what a reasonable person would think or what the individual subjectively believes. can you have an accidental threat? because youonline read something online and you don't know what the person was thinking. are they really intending that or was it just a joke? they can be hard to tell from context. if the court construe the statute as not requiring a subjective requirement, the next question is whether the first amendment allows that. whether it is the first amendment that prohibits a negligent threat statute effectively. there is a statutory question and the first amendment question if the court does not resolve that case. gave a very that i
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small amount of assistance on the defense side for that case. the last case owner to talk about a time versus north carolina, a fourth amendment case involving reasonable suspicion to stop the car in which drugs were found. it involves a north carolina traffic law that says you have to have an operating stop lamp. the individual stopped because they had a tail light out and the officer pulls over the car for having the tail light out, finds drugs in the car. the north carolina court of appeals construe the statute as requiring a stop lamp. you only need one operating taillight, a traffic law drafted a long time ago. the court says, there was no violation actually. it's totally lawful to drive with one taillight out. news you can use. case isquestion in the whether you can have reasonable suspicion to stop someone under the fourth amendment based on a
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mistake of law. that youble mistake think it is unlawful but it is not. our whether you have to hold the government to the law as it is actually construed by the courts even if that construction happens later and it's kind of a counterintuitive construction. that is the question under the fourth amendment of how to determine reasonable suspicion and probable cause. if there is a counterintuitive reading that happens later, you hold the officers to that interpretation or not. paneliste the rare that has been told to spend five minutes and spends maybe fewer than that. question abouta this last case. in general, you avoided giving a kind of take on the right answer or a prediction about what the court might do. i wouldn't mind each. let me ask you this.
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am i right thinking there would be a gap between the criminal defendant who as i understand it from the cop shows i have seen, can't say that i did not know that was the law, therefore i get off and the cop saying i didn't know the law but yet i can search her car? >> my own view is the defense should win because the ignorance of the law is no excuse. it should apply as much to officers as it does to individuals. i think it is very easy for the government. it is hard to drive without violating a traffic law. that includes one mile an hour over the speed limit. it is not like the executive branch of the state has the power to go to the legislature and say we should have a law that makes it on lawful to drive with one broken taillight. this is something very easily
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fixed by the legislature and ultimately if the court was right in its construction of the statute, which i think you have to assume they were, the individual driving was doing nothing wrong and should not be pulled over for it. >> what do you suppose the court will do? >> it's hard to know. it is tricky because you can interpret this case in two ways. not handling the remedy aspect -- i suspect if the court had the exclusionary rule aspect of this, they would say that it does not apply. it may be a case that ultimately makes no difference that is conceptually interesting but may not have a lot of ramifications. >> i have two cases to cover briefly here today.
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the question of federal law under the religious land use and in stood to show -- 00.titutional activ of 20 federal does accept funds, and they restricted an inmate who, for religious reasons, and to grow a half inch beard and only grew a quarter inch beard. the question here is, was that the least restrictive means available to advance when the institution claimed was a compelling government interest? there was an extensive hearing in district court. the prison one based on deference to prison administrators. before last term, you might have thought that it was to come out. lobby -- a lot of people are seeing this as a direct follow-on.
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the companion, statutes, they are interpreted the same. why doesn't the inmate have broader religious freedom here? when we are going to see in this case is tension. there is a lot of evidence in the states brief which demonstrates and illustrates some of the things that can be hidden in a beard. contraband, more than you might think in a half inch beard. at the same time, there were lots of alternatives offered up as for ways to accommodate the interests and meet the safety needs which the eighth circuit all rejected. here you have a situation of the inmate having a very strong case and terms of -- in terms of the
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right to religious freedom in the right to practice it as he sees fit. are really two companion cases involving alabama redistricting. one brought by the democratic conference and another brought by the alabama legislative black caucus. complicated aas case you're going to find and i will try to quickly walk through the various issues. after 2010, alabama faced a problem. the problem was they had majority minority districts that were underpopulated. when you cut to the legal jargon, you get down to the fundamental question of you have to move people into those districts. it will you move minority citizens or will you move white citizens? alabama was facing for different legal regimes that they had to navigate. one, they had to meet one person one vote which means you have to
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move roughly equal population in every district. they had to deal with section five of the voting rights act that says you cannot retrogress minority voting power. they believed as they move white people into those districts, it would reduce the forwarding -- minority voting strength. but if they move minorities, they ran into an equal theyction problem because have been accused of packing minorities into districts to create safe minority districts and undermining the broader representation of rights in other districts. i would violate the 14th amendment. they had to deal with section two of the voting rights act that creates arguments both equal protection in section five grounds. alabama focused on one person, one vote. in their argument, to the exclusion of the other issues. .hey won 2-1
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the dissenting judge said they did not have strong enough arguments and they were packing. that is the grounds that are supported. >> i welcome comments from the other panelist but let me ask you a question on each of these cases. the you think it makes a difference for the man that wants to grow a half inch beard, they seem to think there is no security problem? >> i think it does make a difference. seeing we are increasingly, in a variety of criminal cases, we have seen where the court does care about issues ofstates and prison security and inmate rights. recalled that in 2013, the court effectively struck down a key feature of the voting rights act in section five that required states to the history of discrimination to clearance before it can
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make changes to its voting procedures. section five was the reason offered by alabama officials to do what they planned to say was packing. now that section five has gone away, does that change the contours of the case? >> is a really complicated issue and i think the answer is yes. all disclosure, i was one of the lawyers on the legal team for shelby county. case becausetrange you have a central issue when it was decided in the district with the if they find office has asked, making a decision below and sending back for analysis, you will be vacating a class on the ground that may not have pertinence to the case. the question is, how much capital is the court going to want to invest?
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it has been in the briefing. >> virginia? about a case that involves the conflict between the president and the congress in the very controversial and difficult setting of middle east domestic and international politics. the foreign relations authorization act directs the secretary of state on request to record the first country of an american citizen born in jerusalem as israel on that person's u.s. passport. lawident bush signed the but said the requirement is not consistent with the constitutional authority to conduct foreign affairs and in fact requires nomination. in 2002 refuses to enforce the law, to establish
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neutrality as part of either palestine or israel. u.s. parents when their baby was born, this arises from the denial of their request. the child was born in 2002 and demonstrates this statute has been controversial from the beginning. this is only one in a procession of statutory provisions that create conflict between the executive branch and congress, pushing the u.s. policy towards the recognition of israeli sovereignty over jerusalem. the supreme court has seen this case before, a couple years ago the d c circuit held that the statute had to be observed, whether the state department
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could rightly resist is a political question. up to the went supreme court and they said it is not a political question. now they are going to reap what they have sowed. they have to decide if the president indeed has exclusive recognition authority or what congress has done, with its control over passports and over ,he regulation of immigration is it really a significant infringement on recognition? does it amount to an official act of recognition? the court will find itself in a very difficult western having to resolve this power question between the executive branch and congress. held that thet president's authority was exclusive and plenary. in fact, the requirement that congress imposed would infringe on recognition power. in part, the statute itself creates the problem here.
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the statute itself says that it is the policy of the united states that jerusalem is the capital of israel. of the things that creates a significant infringement on the president's recognition authority rather than opening up somebody's passport and seeing israel instead of jerusalem. it doesn't change the practical reality of the point of view of the state department which, i think, is that if the supreme court were to reverse and say that the statute were to be enforced, there would be a least the state department believes there would in the middle east, that the u.s. has retreated from the long-established policy on neutrality of the status of jerusalem. there is a practical problem presented to the supreme court in this case. the difficult constitutional interpretive collection on whether the president's authority is exclusive since the time of george washington and if this particular statute was an
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infringement on that exclusive recognition authority. an extremely difficult and important case that creates theoretical and practical difficulties for the court. the secondwe discuss case is in much more normal areas. labor employment law. courts have granted five labor employment cases. four of them involve traditional issues of statutory interpretation, a question of whether a certain time is compensable under the flsa, under title vii. and the pregnancy discrimination act about how exactly that prohibition on pregnancy discrimination should be interpreted. but i will not talk about any of those cases. i will talk about the labor case that was granted. notable to me because for 10 years, people have been petitioning the courts to grant this issue. it is difficult to see why now,
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ofer 10 years of conflict the six, third, and seventh circuit circuit that they all of a sudden would now. back, theon is, way unions routinely negotiate for health care benefits for retirees as well as active employees. for decades, i represented the steelworkers. it includes negotiated provision for health care retirees. a couple of decades ago, as health care costs started to accelerate substantially, employers were operating under a recent versions of health care costs and started to think about hmos, cost eg using contributions, co-pays. and as they would change the plans that apply to retirees, they would sue and say my health care benefits were vested. i require a vested right to lifetime benefits under this
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collective bargaining agreement. circuit said yes, when you think about what retirees presume, almost any language in the collective bargaining agreement should be interpreted with a thumb on the scale towards belief that retirees have lifetime vested benefits. if there is not a clear statement that the benefits and are beyond the collective bargaining agreement, the benefits are not vested for life. up seventh circuit ended coming down somewhere in the middle saying we need some language that is indicative of continuation to lifetime benefits. we don't require a clear statement the way the third circuit does. i think there have been 12 since raising theation
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issue with the court. i have been racking my brain about why it would be granted this year. some of the explanation is in the increased public attention to the availability of health care and to possible increased public interest and what kinds how you attain a legal right to coverage. that is speculation on my part. it has been a long-established conflict in an important area to employees that have reliance on the fact that they have health care coverage for life. and employers that face increasing health-care costs that they simply don't know how to manage as they negotiate new contracts with their unions. . very important case it will not get the most public notice. >> let me take you back to the passport case.
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i am scratching my head and i see a reference to the president's power, duty, or obligation to receive ambassadors. where else in the text of the constitution is this recognition power you speak of? the source i think is in the president's authority of what the court has long held as the sole instrument of u.s. diplomacy and u.s. international relations. that, in combination with the provision and that residents whatacted unilaterally is i believe the government will rely on to say it is plenary and exclusive authority. i will talk about two cases and discussed the relationship between congress, the courts, and the administrative state. these are both cases the supreme court has agreed to hear. furthermore, they are cases where my firm is filing the biggest brief. in both cases, challenging the government action.
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the first case has to do with amtrak. the basic issue is this. 2008, they passed a law to promulgatetrak new regulations involving standards for performance of trains on these tracks. the catch is that amtrak is basically a competitor with the other trains that will be regulated by these rules. the other trains are mostly freight. but they are competing for scarce time on the tracks. none tooht rails were happy about suddenly being regulated by one of their competitors. after they promulgated the regulations, the freight rails said that the statute violates the nondelegation doctrine. when you hear the nondelegation doctrine, you might think of the
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so-called intelligible principle. is a slight variation on that. the court decided a case called le, that congress can't delegate rulemaking power to private entities. the challenges in this case say this is a direct application of that case. amtrak is private and can't exercise rulemaking power. a good friend of mine, when he heard about this case, if you have any doubt that amtrak is government, just try the food. that is a fair point, but there's a little bit more nuanced than that. they say they are not a department or agency of the federal government. as a to be operated for-profit corporation. there will be a big fight in the weather amtrak is
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public or private. it has nothing to do with the nondelegation doctrine. whatis a case about circumstances is the case have to go through notice and comment rulemaking before it changes its interpretation of the regulations. we know how a bill becomes law. we know how you promulgate regulations, you go through notice and comment rulemaking. what happens when agency changes interpretation of rulemaking? in the pastpartment has interpreted regulations regarding overtime pay. officers, areoan they exempt from overtime rules? -- i don't think that's right. in the past, the labor department said yes, they are exempt from the overtime rules. the labor department reversed that interpretation and said
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they are entitled to overtime pay. theassociation challenge rule saying that because the labor department made a significant change to the definitive or authoritative interpretation, it needed to go through comment rulemaking before making that change. under the administrative procedure act that sets the standards for the administrative procedure, there is a black letter rule that interprets rules and policy statements and guidance that are exempt from the comment requirement. precedents couple of for paralyzed veterans that say that when an agency makes a so-called significant change to a past authoritative or -- ittive interpretation is more than interpretation. they are, in effect, changing the rule. the d c circuit decision sparked no small outcry. sayingng amicus brief
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that the standard is completely wrong and at odds with the administrative procedure act that compared it to it to the sl administrative law case called for month-yankee in which the supreme court said the courts of appeal can't add on to the standards set forth in the administrative procedure act. cases like this, they might seem like they are very narrow issues but in the last few years there has been this interesting series of cases in the supreme court about the relationship between the courts and congress and the agencies. a few years ago, justice scalia started to question the deference that the court should give agencies in interpreting regulations. recently there was a case called city of arlington about, do the defer to interpretations of agencies' own jurisdiction? there was a statutory interpretation case.
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at the heart of it was that epa's effort to interpret, some would say rewrite, the straightforward numerical standards of the clean air act. i think the health care exchange act case is in a similar vein. it is interesting to watch the little past the boundaries of deference, of the separation of powers. it manifests in interesting cases. >> does it tend to divide the court ideologically? the secondtart with question, in terms of the divide, it cuts across the justices. we see this especially with justice scalia, who on the one hand, a lot of conservatives cheered him on when he started to question deference to agency interpretation of rules, but in the city of arlington case, he
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writes the opinion saying the court will continue to defer to agency interpretation. the justices often say very interesting things. chief justice roberts as well. in terms of the theme, maybe i am overthinking this. maybe the justices take these cases one at a time and they stand on their own merits. for me, i think there is the sort of broader -- not broader rethinking, but this much more thoughtful reconsideration of the relationship between the courts and the agencies in terms of deference. have given you a nice overview about the cases on the docket already. you can judge how big they are. i would suggest that the end of june they are not going to be on the front page of my newspaper. is going tot carrie
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discuss might well be. >> i had the challenging job to , theat what is coming up long conference where it can seniors -- where many cases will be considered. much of what i say could be moved within a week. we will see what happens. at any rate, at the bottom, all of the issues i am discussing, even if they aren't considered by the court this term are something the court will decide probably next term. if it turns out they don't take any of these cases, i will give exactly the same talk next year. cases i want to talk to are the hounding and king cases. these are the next big challenge to the obamacare regime. this one is interesting because the challenge is trying to get the text of the affordable care
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act enforced according to how it was done. it is not trying to overturn the affordable care act, it is trying to enforce it. in the act, there is a provision that the subsidies available for plans purchased under an exchange at established by the state under section 13.11 of the act. the irs, in the face of an unexpected three or four states that did not establish exchanges, wanted to make sure the subsidies were available nationwide and not in the minority of the states. going backreted it, to our question of agencies interpreting the statutes, they interpreted it in a way that was called somewhat a mismatch with the text of the statute. -- cases for
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the state that didn't stat establish an exchange, the federal government did so instead. what we have is, in the king case, we have individuals and in the held in case, individuals and employers who sued, arguing that this was in violation of the law. the agency may have the right to interpret the statue but not the right to rewrite the statute. case, the implications are not only that the people would not get the subsidies, but also that millions of people will also not be subject to the individual and employer mandate. the numbers i have seen are about 5 million people, if the irs is incorrect, if the text reads as a plaintext meaning, about 5 million people would not get subsidies but another 8.3 million would not be subject to the individual mandate and 57 million would not be subject to
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the employer mandate. there is huge implications for a lot of people. what we saw in these two cases was basically the circuit split. the morning of july 22, the d c circuit held that this was an improper interpretation by the irs. by early afternoon, the fourth circuit held that it was fine, that this was ok and the irs has the authority to do this. normally, one thing the supreme court is looking for is a circuit split. they had one right there. the plaintiff who had lost wasted no time in filing their petition. they turned it around in nine days. then it could have been considered by this first conference. because the government was given a 30-day extension, it would be considered in october, possibly
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early november. in the meantime, the government asked the d c circuit to take the case. the court which is now composed of a 7-4 majority of democratic appointees, if they vote along party lines, they will overturn the decision of the panel and a race. the question is whether the court will even take this case given the fact that the split is in question. there is a lot of argument as to why they would. the court does consider cases that are major questions when there is not a circuit split. even if there isn't a circuit split at the time the case is argued, there is a good chance there will be a circuit split down the road. these states are in 10 different circuits. until all of those circuits have decided the issue, it is still going to be a question that is
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causing uncertainty for everyone in the state who wants to buy insurance. all the employers who aren't sure whether they need to offer it. a lot of employers feel forced to cut hours for their employees to make it possible to continue not offering health care. and for the states themselves, how to be regulating. it is a major issue and we will see if there is more. this is another case that could fit into the pushing back on chevron. does chevron even apply here? does the irs maintain a health care law? whether you feel like it is a tax might fit into that question. whether the statute is ambiguous and whether that interpretation is reasonable, there is that. this also fits into the theme of the growth of federal government , growth of the administrative state and the pushback on these
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constitutional limits on government. particularly on the constitutional issues we have had with this president having less respect for the separation of powers and the limits on his own authority as long as he has got his phone and his pen. a less seriouse view of his complications -- his constitutional obligations than something he should. a pretty dismal success rate and some of these aggressive positions make claim to that. the second set of cases is marriage cases. that is a slew of circuits have petitions already on monday's conference. the fourth circuit, the seventh circuit and the 10th circuit have multiple cases with petitions. also decisions in the
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fifth circuit, sixth circuit and ninth circuit. one challenge is, there is not actually a split right now. it may go away. all the circuits that have considered the issue have looked at it the same way. stateave all overturned laws and constitutional amendments that limit marriage to a man and a woman. the -- how the court will take the cases is hard to predict. we had justice ginsburg a week or so ago commenting that we have to wait for the sixth circuit to find out what they do. she would seem to be suggesting, why rush into these cases? we will wait until one occurs. it is reasonable to think there may be one. the sixth circuit oral arguments in which they considered four different state laws seemed to lean in favor of upholding those
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laws. that would create the first split in this issue. there is also the fifth circuit, which is seen as -- depending on the panel, it has a decent chance of upholding the state laws. that is a case that has not been scheduled for oral argument. the ones in louisiana also upheld a state law. which case might be considered? there is a lot of very complicating the vehicle issues in terms of problems in the various cases. some of them, like the fourth circuit case, there is a question because the attorney general isn't actively supporting the law. like theith questions prop eight case. how do you do when you have the state executives -- who can defend it? and whether they are allowed to petition for appeal when they
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have lost a case that they wanted to lose? the seventh circuit case and the 10th circuit case out of utah have solved many of those questions between states that have governors and attorney generals supporting their laws. we have an interesting combination. you have a question of licensing as well as recognition from out of the state. whether you have to recognize marriages contracted in other states. on the seventh circuit, they have due process challenges. that might be a chance for the supreme court to get all these issues on the table. all of these cases are beating the great pace of petitioning that we saw in the king cases. -- not only did judge pozen are turnaround the
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decision, but i believe it was only two days after the decision came down that they filed -- no, it is five days after the decision that they filed. the response was in the same day the petition was in. everyone seems to want to hear these cases. the states have responded saying, we won, but please take our cases anyway. this is a brush for who gets to be the case that has its name on it. affect how the court views it as well. everyone is making slightly different arguments. -- some of the issues will be similar in either this case or the affordable care act cases because the split is in question. it is affecting a large number of people. million that 57 are affected by the health care
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mandate, but there are many people who want to see this solved. i am sure the court will have to deal with the case eventually. >> thank you for that. i think some of the things you touched on are so interesting. let's take them one at a time. let's talk about the king cases. directly,ink you said if the challenge succeeds, it is very hard to be sustained. how fast it does so is going to be a question. having the subsidies unavailable in those states will be a severe blow to the law. not as severe as the original challenge to the case, but definitely it would fall under its own weight. >> if there is that fear, how likely is it, understanding that the plaintext is very supportive
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of what you laid out, how likely is it that congress wanted to put such a time bomb in section 13.11? evidence that they did know what it was and one of the architects of the law commented on this. they didn't think of it as a time bomb because i don't think thought the case could go through without establishing these exchanges. they thought it would force the states to play ball. day, what end of the congress intended is unknowable. you have hundreds of individuals. for the same reason, it is and what the court should be looking at. i think we need a full conference. their job is to write a law. and not have the irs going back and try to cover their back and
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not have the supreme court going back and trying to rewrite the law for them. we need to maintain that accountability. we need congress to know that his words actually make sense. you really do need to do your homework up front. >> sticking with the aca case, i would be eager for anybody's thoughts on the point ca rrie just made. grant court likely to certain under support and question/ and question? >> nobody wants to make a prediction. op-ed when the hearing petition was pending, walking through the d c circuit
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history of hearing cases. it would to me that before rehearing the case. obviously i got that one wrong. convio am sure. t emptor.veart this case was so important, the d c circuit needs to rehear it, such an important case, but it is strange to hear the administration supporters say that over and over again and then say it is not that important. it is important enough that the circuit needs to rehear this immediately, but not the sort of thing we need the supreme court justices to weigh in at this point. having seen the ferocity surrounding the debate, you have to wonder what the justices were seeing and watching. they don't live in a vacuum. they see all this happening
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around them. you have to wonder whether the cacophony that surrounded the rehearing request might influence the court's eagerness to take this case up. k it is extremely important, they said. >> if i had to guess, i would guess the court won't take the case as a split, in part because i think in their mind they think they are done with the affordable care act. it was the case of the term not long ago. it was, from what we can tell, traumatic and really a big, difficult case internally. i suspect they would be your to jump back into this unless there is a split, which would be the traditional criteria. >> let me ask you a counter scenario, which is, a couple of years ago when they decide of the last case, there were four justices who were pretty unhappy
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and eager to take down this law. it only takes four votes and those justices might be eager to jam up the chief justice, or at least that is one way of thinking about the court. but that is probably too cynical. >> even if that cynical view is case is think -- if the seen as a way of getting back at the chief justice, then presumably they fall along the lines they did last time. if you favor the challenge, it looks a lot more credible coming from a split than it does if there is no split. >> in addition to the four justices in the individual mandate case, not to drag us back to administrative law, but there were five justices last year who voted against the epa's
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frontline arguments in the clean air act case. they said under the greenhouse gas statute, words in statute to mean something. you can't just claim the results of an interpretation are absurd and rewrite the statute to maintain the program. it seems to me that there are caseg echoes of that epa in the health-care exchanges case. -- the other epa case the last term where justice ginsburg said the job of the court isn't to promote the policies they think would be best but apply the statute as it is written, that works in this case as well. >> that will tell you something about where they come out on the merits. other thoughts on the aca cases? let me move to the marriage toes, which are very likely be the centerpiece of this term,
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and turn it into whatever else they have taken, whatever cases they have taken. if they take same-sex marriage as they are likely to do, that is going to mark this term. let me not get ahead of myself. as carrie pointed out, there is also no circuit split here. what is our thinking about whether this is the kind of case where the court cares about a circuit split? it is no small thing for federal judges around the country to be striking down state laws. is that enough? i am going to start calling on people by name. >> i will start. it is a very unique posture. they are not getting any boost from any party. i think that is what puts the court off the situation here. when you saw how the california
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case came out last time, and then you see the comments justice ginsburg is making, there is a hesitancy that cuts across party lines. think thee time, i undercurrent is having to deal with all these state requests which are very complicated, which are causing real difficulties in terms of lower courts. said, i understand the court has granted other cases. we are not issuing opinions stating why. i am not going to grant one. i think there is an institutional cap in terms of how many cases to deal with. >> i think the importance of this case is so great. they take cases of much lest wait -- much less weight based on importance ground.
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i think they will take these cases. one of the fact that got talked about a lot of couple years ago, even justice ginsburg kept on talking about the aftermath of roe v wade. the way the court took that case in her description, instead of taking a step i step of you, went brought on that -- a step by step view, went brought on that case. do we want marriage to be the next rule the wade? -- roe v wade? i think that is something the court is concerned about. maybe it is part of the reasons she was suggesting we want to wait before getting involved in this case. the challenge is that we do have almost a fever of lower courts that are rushing as fast as they
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can to overturn every state law they can find. whether the supreme court gets involved or not, you have courts that have gotten involved. whether you have the case of democraticallyng elected positions, it may be possible for the court to avoid a specter of a repeat on that. one wonders what justice kennedy is thinking. panele kennedy preview with special guest -- on the marriage cases, it is especially so. he wrote about liberty and also wrote about state authority and federalism. it wasn't clear to anybody where he was going with this. what we have seen in the aftermath is a lot of courts focused on their version of
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liberty with much less care for state power and federalism. maybe justice kennedy is happy to watch this play out. maybe he is looking for another opportunity to clarify what he wrote. >> so it is the case that justice kennedy is the author of all three major gay rights decisions. it will likely be his legacy and it would be surprising if he would make a turn now when the polling numbers are moving in one direction. or do you disagree? to make anygoing money betting on what justice kennedy is going to do. he has written a lot about federalism. he has written a lot about individual liberty. often times it seems that federalism is a means to the end of liberty. it is not clear how it is going to play out. this takes these two lines of justice kennedy's thoughts and
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puts one against the other. >> actually the poll numbers recently show that support for same-sex marriage has dropped. whether that is a blip, i don't know. you wonder if that is that same affect. when you have people who feel like the courts are jumping in, usurping territory that should be worked out in the political , maybe himspheres making the decision would undermine his being viewed as a positive legacy. i don't know. i don't know whether justice kennedy wants to make that decision. he probably would have done it last time. >> you are quite right. >> he would probably rather -- >> when the court issue came before the court last year, not the doma case, it was plain as day that justice kennedy didn't
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want the case to be before him. he was delighted to see it go away. i don't think anyone predicted that windsor would be received as it has been, with everyone focusing on one of the two theories in the case, the liberty theory. whether the court wants to or not, i think this is probably something like a consensus, it is going to be hard to avoid getting into it. let me ask one more general question and then turn to your questions. at the end of the last term, it was hard to write, because reporters like conflict. there was substantial conflict at the very end of the term in hobby lobby, but it was also a term that had an extraordinary amount of unanimity. .he largest in the modern era about two thirds of the cases were decided unanimously. not all of them unanimous on the
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rationale, but many of them. i am wondering whether there are thoughts here about whether that is a blip or whether that is testimony to the court trying to , testimony of the chief justice playing a role in getting the court together, or whether it is the nature of the docket on the cases we have been talking about, which may be areas in which the justices are less apt to disagree. >> i will take the guess that it is a blip. i think we have only seen the trend over one term and there was nothing specific that would have suggested an overall shift. is going to change within a year or two probably. it is just ahat
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one-term event, maybe two-term advance. at we are not going to enter new period of unanimity of the supreme court. >> i tend to agree with one minor caveat. inhink the chief justices major cases have led to more unanimity than you would have otherwise seen. has been on most of those and most of the court has come with him. in other cases of that kind, the court was on the brink of making a major ruling, stepped back. when you see cases like that,, i think it is part of that. >> i think there is broad agreement on a method of statutory determination that would cause some convergence and the major interpretation cases. for example, the fair labor standards act case. i would predict some unanimity.
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i think in cases that are not directly in the limelight, there is agreement on the method of looking at statutes. you might see more agreement in those areas than the hot button cases that have more interpretive play. s. it ebbs and flow other panelists would know these cases better than me. in cases involving the voting rights act, campaign finance, the court was able to achieve unanimity on a statutory , on an issuen basically returned to the court. indicated thats some justices were not too pleased on how things played out in the long run. it changes over time. agree.
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13 unanimous losses by the administration. when they take extreme positions, that aids the cause of unanimity. some of the cases they were considering, the ninth circuit helped with unanimity. they were able to unanimously overturn them. sometimes good rashes of serious error, the court can look really unanimous. there are certainly more cases where there is absolutely an ideological divide but they managed to come together. that means sometimes you get cases where that kind of unanimity can survive. once they are forced to look back at the case, it is going to break apart eventually. >> personnel changes. what is the outlook? assuming there were to be a resignation in this
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administration, what kind of chances with the president have --let me askmeone it this way. justice ginsburg has said words to the effect of, who are you going to get better than me? i don't think that was the statement of an egomaniac but it was the statement of a political realist. >> certainly in terms of who is likely to step down, everybody focuses on justice ginsburg. in part it is because there is no sign of anyone else having any likelihood of that anytime soon. you never know what might happen. what would happen if justice ginsburg did step down, it depends insignificant part on which party controls the senate. that is going to be the big question. we will know more about that shortly.
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it is a political process question and it depends on who votes for who. t controls it is wha the senate. we have already seen the filibusters eliminated. while they are still available for some dream court nominations, it would be naïve to think that harry reid would not get rid of those as well as there was any pushback on whoever the president nominates. if the democrats maintain control of the senate, the president could appoint another ginsburg if he wanted to. i think he could easily get 51. that is all he will need when harry reid takes the next step. >> chief justice pater decried the partisanship around nominations and reminded us that scalia was unanimously confirmed. got just a handful of votes against.
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with the last four nominations, we seem to be in a different climate. what accounts for that? >> you can't talk about that without going back. the whole system has really changed from one of significant deference to the president to one in which there is a lot of pushback and a lot of fight. my perspective is that it was started by the democrats making a huge deal out of borg's nomination. thate now in a world where is how nominations are dealt with. i don't think we can step back from that now. you are not going to get both parties to disarm simultaneously. borg was kennedy, breyer and ginsburg. it didn't change every single nomination. >> now we are in a different world.
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everyone things we are still in that -- let the other panelists see if they think there is hope. >> i don't think there is any downward ratchet in this process. it can only get worse. even when it can't get worse, it does seem to. >> an interesting question is what happens when you have the senate in the opposite party control as the president. up to now, the last few nominations, you have had the senate controlled by the same party as the president. partyrybody is voting on lines, the nominee will squeak by. things get much more complicated if the other party is controlling the senate. then everybody votes on party lines, they reject the nominee, the president comes back with another nominee. you keep having partyline projections. morethe president move towards the center in terms of the nominee or say, i am just going to get more ideologically
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towards my end every time and keep playing this game out. that is the reset button question. nobody knows how that is going to play out. >> we have seen that before, 1968. that was johnson not being able to get his nominees through a republican congress. it is messy. of confirmations, i think it is important to separate two things. character assassinations of judicial nominees. to say that we shouldn't engage in character assassination is not to say we shouldn't have strong political and intellectual debates over supreme court nominees. washington was a more peaceful town back when the republicans -- orrin hatch would get together with bill clinton. lewis powell or scalia would get through easily.
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what we lost in those debates was real thoughtful discussion of ahead of time about what the american people want the court to look like, what our elected officials want the court to look like, and to have their say at the beginning of the process. good point.s a it is not irrational. as more social policy has moved over to the court, i think you are seeing more invested in making sure the bench is filled with people who share their approach to law and society. >> then there really is no hope. properso divided on the outcome of that intellectual debate. really, there can't be anything but this kind of harshness. it is winner take all and loser goes home until they win. i don't see any end to the process playing out the way it
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is now. ginsburg's tice wade critique of roe v that they thought they could end the political debate once and for all? buckley said there are no eternal victories. these things continue on and on. that is probably the way it should be. >> so you decide for yourself whether the situation is hopeless or just really bad. [laughter] we will move to your questions. who would like to go first? or would you like to follow the panel? here is a microphone for you. >> ok.
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the statutory question is cut and dry, but the fourth circuit reasoned that references to such exchanges included federal exchanges, and therefore the supported theued, irs' interpretation. i wonder what you and others might think about the viability of that argument with the nine justices, all of whom say plain text is important. briefs in king and yes, my position is the plaintext is pretty clear. it is clear the plaintext is intentioned with the irs' interpretation. the question is whether the
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exchange created by the state can stand in the shoes of the state. i think you can argue both ways. this is why the fourth circuit was able to come to that position. you might not even fully get down there. some of it does get determined by your approach to discretion and deference and chevron. a lot of it may be determined by this earlier procedural point of, do we have to get deference to the irs interpretation? if the courts decide we have to get deference, they might not think it is such a great interpretation but they have to go with it. . think there is a lot of room the plaintext simply doesn't say that. it is an open question. i think the text is clear enough to easily sustain saying this is
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unambiguous text. obviously, minds can differ. >> any thoughts on that? it is so quiet in here. yes? >> hi. i guess it doesn't seem quite as clear to me that the courts have settled on an approach the statutes. in ordinarys clear cases that that is so, for example, i think there is a pretty good argument that there was no statutory interpretation. they just never got around to figuring out what the statute says except that it doesn't reach this case. figureuld have had to
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out the constitutional question and we don't want to do that. would worry if i were thinking about what is going to happen and hoping the statutory approach, the textual approach to statutes holds up. it is under a lot of real pressure. i wonder about that as a possible way of understanding the situation. >> i agree. i think bond tells you much more about the court approach to constitutional interpretations than statutory interpretations. everything was driven by the effort to avoid citing a very hard question. it traces back to the hallmark of the tenure. whether you agree with or inagree with it, we saw it the affordable care act, in austin.
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you all right. -- you are right. at the same time, i also filed a brief in king supporting the challenge. i think the position is fairly complicated. sometimes they are arguing that this was an intentional gap and the irs filled it. thi they are trying to find out which argument is going to be received better but they haven't chosen which one they liked better. >> is this issue going to come up again? isking at the statute, there a very strong statement from congress that the united states policy on jerusalem is this, but , what they are asking for is much smaller. they are asking for a passport marked to israel. i thought about this case quite
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a bit. i think it does pose a tough challenge between congress, the president and their powers. at the end of the day, the family just wants a passport. u.s.resident can say, policy remains unchanged. at the end of the day, the court can construe the statute narrowly on the question of u.s. policy and get to the question of what something says on a passport. maybes about totzke is another case. when i look at the case, i step back. what hard for me to see the real substantial infringement of the president's recognition power is. nobody is saying that u.s. says this,tatutes but in this case i don't think anybody is saying that u.s. policy is different. it is just what is written in a passport.
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>> i think that is essentially severing the statement about what u.s. policy would be. to have something in the passport that the president and previous administrations actually would have a damaging effect on the ability to control foreign policy and recognition of sovereignty or the decision not to recognize sovereignty. you have to reject the president's judgment and sever the statutory statement about what this means u.s. policy is from the notation on the passport. i think those are big things to do. if the court is willing to say, we are going to discount the president's judgment on this and , iore the statutory language think that is a very dramatic step. >> in terms of whose judgment, there is the president, but there is also what something should stay in a statute.
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you referred to foreign affairs. that is a line he is drawing from back when marshall was still in congress. if you look at where that line comes from, i think what marshall was saying is once policy is defined by congress, the president is the sole organ and carrying that out. true, maybe he is the instrument of foreign policy but an instrument doesn't play itself. maybe it is the senate and congress that should have some say of what is in a passport. otherwise it is the president's judgment of what will and will not make foreign policy. >> the other thing i think is interesting here is that long-standing institutional judgments acquiesced by congress over the long term thank you very much rural recognition -- like unilateral recognition
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should get to the president. there are very powerful arguments that the president has that his judgments would be , as previous presidents have also judged. >> adam does make a point that it seems kind of trivial. who is going to upset at the turkish border? >> the judgment of the number of secretaries of state, that is not trivial. it will be read in a particular way in the foreign relations setting. that the backve of your hand and risk having this affect on international relations or not? i don't know if the court is willing to give us the back of its hand. >> there is one more thing in play here. when president bush signed the statute, he said, i am not going to treat this as mandatory. that is back when signed statements were a big deal. 2008, president obama is
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giving his famous interview where he says, i am not going to use signing statements to nullify or undermine congressional instructions. i understand he was a senator then, he is a president now. it really seems like at this point, maybe somebody needs to remind everybody about where we have been on these issues. >> it sounds like in this articular case, you think constitutional avoidance move might be right. >> sure. like i said, i am just very curious why we can't avoid the bigger policy issue and decide narrowly on the basis of what is written in a passport. >> yes sir. >> in terms of temperature of social events like the border, where agents are collecting people, what do you think the
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temperature will be for these cases? what do you think is going to be the trend for this coming term? not sure we fully have the question yet. >> my question is, how is these issues going to affect citizenship? will there be more lightning -- more rioting? >> i think the facebook case will not result in rioting. let me ask the question in the most salient way. assuming the court establishes a right to same-sex marriage, which i think is more likely than not, how do you think the country reacts to that? >> there is a sense that attitudes are shifting so quickly -- i think we could have answered that 10 years ago, five years ago, maybe even last year,
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and there is a sense that attitudes are changing quickly enough that it is hard to predict. it is very hard to know. it may have the lines of deepening the because of the feeling of this not being the result i would .ave come to it could work both ways. it could mean everyone jumps on the bandwagon, says this must be the direction everything is going, or people could backlash nsa, i think the court -- and say, i think the court is stepping out of line. you could get pushback. it is really hard to predict. i think it would be different if the court decides this year versus next year. >> how much do you think the
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court does or should care about blows to its reputation, authority, prestige? do we care about that class? >> a little bit. [laughter] nature foris human them to be -- to care about how their decisions are being received in terms of affect on the other branches and their own credibility. it is critical that they not pay too much attention to it. we would not want a supreme court that is just following whatever is popular and not paying attention to the text and history. probably they pay a little bit of attention. >> it is good that the justices are instituted by life tenure. to our earlier discussion about judicial nominations. justices, no matter which way they go on this case, it is
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going to fiercely energized some corners of the political world. we are going to feel this affect on future nominations. those are the reasons why i find it hard to take too seriously complaints about the public fighting over confirmations as fiercely as they do. they fight over these things because they are important. the courts ultimately make decisions for which the public only gets a voice after the fact. >> let me answer the question in a slightly different way. of of the terms in terms statutory representations, and criminal law, both the gates case and another case raised points about how to broadly construe criminal statutes. the court is going to be construing the statute's in the context of a justice system going through changes.
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we have a lower crime rate than recently. we had a dropping crime rate over the last 25 years or so. i think eric holder recently announced the size of the federal prison population is dropping this year for the first time since 1980. if you look at some of the key there is kind of an aspect of the facts which are almost comical. example, a guyd who threw some fish and to the water. context that odd the compelling government interest is absent from these cases. an interesting question is whether the facts of the case, or of dropping crime rates in general, changes or has some influence on the scope of statutory implication.
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in the 1980's, when crime was a political question, crime rates were high and politicians were talking about crime a lot. in that window of time, you have a series of cases construing federal criminal laws very broadly, basically saying this is up to the justice department to exercise prosecutorial discretion. the court almost got out of the statutory interpretation game. i wonder if now we are seeing a shift towards narrower statutory interpretation, whether that is reflected in crime rates or some other shift. it is a really interesting trend to watch. >> other questions? let me ask one that occurred to me as we were talking. the court seems to think -- i don't know if this is right --
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that the public is going to accept a unanimous decision more easily than a closely divided one. which is why they worked so hard to make brown versus board of education a unanimous case. does that actually work on the ground? do people whether care -- do people care whether hobby lobby was 5-4 and the abortion case was unanimous? do people care about the marriage case is likely to be 5-4 or 6-3? do these differences that the courts seem to care about make a difference on the ground? >> i think to some it does. are following the supreme court's closely are using votes as proxies for what is right or wrong. on the conservative side, you might say, i am going to follow justice scalia and justice thomas. if you are on the liberal side,
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you might say, i will follow justice sotomayor and justice ginsburg. dissent, you a think of a scalia dissent where he rips the other side, that can affect people. i suspect it really influences those that are sitting around the room -- many of them here. the inside crowd that has a strong sense of, i like this justice. i suspect the public is not really influenced by any of that. there is a debate out there but they are not reading it. tend to agree. the question is, who are we talking about? court watchers, yes. the general public, no. how the cases interact with their own life is what matters to them.
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really affect everybody, the tax cases affect everybody. pointednk as carrie out, institutionally, some of these divisions against the administration do matter. you talked about the appointments clause challenge. a leadas unanimity on issue. i think that does matter in terms of when they come back to the court. to just illustrate that it is not always perceived by people gore,y it is, take bush v it is 7-2. one part of the decision was 5-4 but another part 7-2. everyone sees it as this huge dividing line. it depends on which part of the decision. at any rate, there are certain
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really controversial issues. when you have some kind of unanimity like the case with the recent appointments clause, at least it does defuse to a certain extent when you have justice kagan and justice sotomayor voting on the same side. you can still say this is a wrong result, but it makes it a little harder. >> keep in mind, the people have to -- the businesses and the people that end up being governed by these decisions, a nine-vote decision doesn't say much at all in difficult questions to very minimalist decisions. fore is a lot of clarity people who have to comply with the law. a 5-4 decision might cause a political uproar but at least everybody knows where the court
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stands on the broader principles. it cuts both ways. >> if we have run out of questions -- have we? >> on the next washington journal, a look at the role of the national institutes of health and medical research. their funding and involvement in combating outbreaks. you will hear from dr. francis collins. grady,inue with patricia director of the international institute of research. later, northwestern university is our latest stop on our big ten college to her. we will talk to that college's president about public policy issues impacting public
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education. washington journal is live every morning on c-span you can join the conversation on facebook and twitter. >> coming up on c-span tonight, president obama speaks at the u.n. climate summit. after that, terrorism and national security experts assess the threats against united states. then the senator of virginia talks about the role of congress in combating isis. jim webb space at the national press club. obama is in new york city for the meetings of the united nations. the peaceful world he saw emerging is looking like a distant dream. he goes on to say that just in the past few months, the rise of

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